Kailash vs State Of Rajasthan
2022 Latest Caselaw 1221 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5126/2021

Kailash S/o Ramswaroop, Aged About 30 Years, Nyaliya Dudhwa, Tehsil Khetadi, Dist. Jhunjhunnu.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Vimla Devi W/o Subhashchandra, Ratusar, P.s. Bhanipura, Teh. Sardarshahar, Dist. Churu.

----Respondents

For Petitioner(s) : Mr. J.S. Khichi, through VC For Respondent(s) : Mr. Mukhtiyar Khan, P.P.

Mr. Bhagat Dadhich, through VC, for the complainant

HON'BLE MR. JUSTICE SANDEEP MEHTA

Order

27/01/2022

The accused petitioner Kailash has approached this

court by way of this criminal miscellaneous petition under Section

482 CrPC seeking quashing of the FIR No.212/2021 registered at

the Police Station Nohar, District Hanumangarh for the offences

punishable under Section 376 IPC and Section 67 of the

Information Technology Act.

Mr. J.S. Khichi, learned counsel representing the

petitioner, urges that the petitioner and the complainant Mst. 'V'

have settled their disputes amicably. The physical relations were

established between the petitioner and the complainant, who is a

major married woman, with their free will and consent and hence,

the impugned FIR deserves to be quashed.

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Mr. Bhagat Dadhich, learned counsel representing the

complainant, has supported this statement of Mr. Khichi.

Learned Public Prosecutor urges that the proceedings of

an FIR registered for the offence punishable under Section 376

IPC cannot be quashed on the strength of a compromise and

hence, the petition is liable to be dismissed.

I have considered the submissions advanced at bar and

have gone through the material available on record.

It is clear that the FIR has been registered for the

offence punishable under Section 376 IPC, which not

compoundable. The prosecutrix has levelled distinct allegations of

rape against the accused in her investigational statement. Law is

well-settled by a catena of decisions of Hon'ble Supreme Court

including that in the case of Narinder Singh & Ors. Vs. State of

Punjab & Anr. [(2014) 6 SCC 466], wherein the Hon'ble Apex

Court has laid down the principles governing exercise of powers

under Section 482 CrPC for quashing of proceedings on the basis

of a compromise. The relevant part of the said judgment is

quoted hereinbelow for the sake of ready reference :-

"31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court

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to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

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(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

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(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

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At clause No. (III) of the above directions, it has been

specifically observed that the cases involving offence of rape

cannot be quashed on the basis of a compromise.

Hence, I am of the firm opinion that the instant criminal

miscellaneous petition preferred by the petitioner seeking

quashing of the impugned FIR involving the offence of rape on the

strength of a compromise is not fit to be accepted. Hence, the

same is dismissed as being devoid of merit.

(SANDEEP MEHTA),J 11-Pramod/-

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